Don’t look to SC to do it

Cleansing politics

The ‘criminalisation’ of Indian politics has long been seen as an issue that takes away the sheen of India’s claim to be a free democracy. While there have been multiple efforts to ‘cleanse’ Indian politics in the past, this issue has now also got the attention of the Supreme Court. A five-judge Constitution bench headed by Chief Justice Dipak Misra recently concluded hearing arguments and reserved its judgement in a Public Interest Litigation (PIL) demanding the disqualification of legislators facing serious criminal charges.

Presently, a legislator can be disqualified under Section 8 of the Representation of People’s Act, 1951, only if he/she is convicted for certain offences. The PIL, filed by an NGO called Public Interest Foundation, has asked the court to issue guidelines providing for disqualifying legislators the moment a charge is framed against them by a court. The petition also wants the filing of false affidavits by electoral candidates to be a ground for disqualification.

In December 2013, a division bench of the Supreme Court requested the Law Commission to submit a report on these questions. In its 244th report on ‘Electoral Disqualification’, the Law Commission recommended that disqualification should come into effect at the stage of framing of charges, rather than upon conviction, and that filing of a false affidavit should be added as a ground for disqualification.

Currently, about one-third of the members of the Lok Sabha face criminal charges. The petitioners claim that the presence of such a high proportion of legislators with criminal antecedents threatens the basic feature of parliamentary democracy. Since criminal trial proceedings are slow, they contend that it is fateful to wait till legislators are convicted for them to be disqualified. However, such reasoning reverses the fundamental principle of criminal law regarding the presumption of innocence.

The Law Commission has justified its recommendation on the ground that, unlike the stage of filing an FIR by police, a court applies its mind at the stage of framing of charges. However, the question remains whether a person’s freedom to contest can be restricted even before he/she is lawfully convicted.

Even if we accept the need for instituting this reform, the fundamental question is this: can the court introduce additional disqualifications beyond the ones stated in law? While the judiciary, in its activist avatar, has often expanded its role in the interest of justice, it still cannot use its judicial powers to create additional provisions in an existing law. In the landmark Vishakha case, in which the Supreme Court laid down guidelines for sexual harassment at work, the court was filling a void till parliament enacted a law on the subject.

Even in the Association for Democratic Rights case, in which the Supreme Court mandated the disclosure of criminal charges, educational qualifications and personal wealth of electoral candidates, it was furthering the voters’ right to know, an extension of their freedom of expression. However, in this case, there is no such fundamental right in question. Moreover, since the grounds for disqualification are already laid down in law, the court cannot introduce new grounds in the guise of guidelines.

The institution responsible for implementing the recommendation of the Law Commission on electoral disqualification is the legislature, not the judiciary. Admittedly, it is against the self-interest of the members of parliament to pass a law that disqualifies some of them. It is this imbroglio that has led civil society groups to turn to the court. However, judicial intervention in such socio-political issues is not necessarily desirable.

While the courts and middle-class activists deplore the criminalisation of Indian politics, they often ignore the social conditions behind it. In his much-acclaimed book When Crime Pays: Money and Muscle in Indian Politics, Milan Vaishnav examines why candidates with criminal charges tend to win elections.

Firstly, such candidates are on average wealthier than their ‘clean’ opponents. As the cost of running electoral campaigns has multiplied, political parties expect candidates to self-finance their campaigns. Beyond issues of money, Vaishnav finds that voters consciously elect candidates with criminal charges because they offer protection in a social setting where the rule of law is weak and implemented arbitrarily. In fact, criminality might be a positive attribute to some voters as they look for candidates who “get things done”.

The social realities driving criminalisation of politics are hence quite complicated. Partial electoral reforms targeted at removing criminality without considering its underlying social roots are unlikely to succeed. In any case, the Supreme Court is neither ideally positioned to undertake such reforms nor does it have the authority to introduce new grounds for disqualifying legislators.

The oral observations made by the judges during the hearing of this case also suggest that the court accepts that it does not have the jurisdiction to add new grounds for disqualification when the law is already clear on the subject. Hence, the court is unlikely to come out with a set of binding guidelines to restrict people with pending criminal charges from contesting elections.

The presence of a large number of legislators with pending criminal charges points to larger institutional failures. If we had a functioning criminal justice system, in which trial proceedings are not continually delayed, the demand to disqualify legislators before conviction would not have arisen in the first place. Hence, it is important to approach this issue systemically. Given the link between criminality and wealth, any systemic solution should also include the reform of India’s opaque election-financing machine. Instead of reflexively going to court to fix complex socio-political issues, to effect a lasting change, the focus should be on building political momentum to make electoral reforms a mainstream political issue.

(The writer is a research consultant with the Centre for Law and Policy Research, Bengaluru)